COVID-19: Telehealth Takeaways from the CARES Act

On March 27th, Congress passed and the President signed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act). On both the federal and state levels we have seen efforts to support social distancing in the health care sector by increasing the use of telehealth. On the federal side, we have seen the continued relaxation of Medicare statutes and regulations allowing for telehealth to be rendered to patients in any location, among many other recently published relaxations, and many states have relaxed state licensure requirements allowing physicians to render telehealth services across state lines without the delays of obtaining specific licensure. In line with these efforts, and others, comes the third bill aimed at the COVID-19 public health emergency (PHE) and overall pandemic. The CARES Act contains many measures to increase the use of telehealth through the waiver of certain in-person requirements and increased funding to enhance access to telehealth services.

Among the key takeaways in the CARES Act related to telehealth are the following:

Broader Telehealth Waiver Authority

Under the Telehealth Services During Certain Emergency Periods Act of 2020 (the TSDCEPA) that was part of the larger bipartisan Coronavirus Preparedness and Response Supplemental Appropriations Action 2020, which was one of the first pieces of legislation aimed at fighting the COVID-19 pandemic, only limited waivers of Medicare telehealth coverage requirements were authorized. These primarily related to the location of the Medicare beneficiaries receiving telehealth services. Under the CARES Act, the Secretary of Health and Human Services (Secretary) now has the authority to waive “the requirements of Section 1834(m)” which is the Section of the Social Security Act containing all statutory Medicare coverage requirements for telehealth. What the Secretary does with this new waiver authority is yet to be seen fully, but a large number of telehealth related changes and expansion have already been published as of March 30, 2020 and made effective as of March 1, 2020. Further, CMS has indicated that additional waivers or changes to statutes and regulations to provider even greater flexibility for telehealth services are already in the works.

Prior to the CARES Act, neither a FQHC nor RHC were included on the list of specified distant site providers who could render Medicare-covered telehealth services. Now, both FQHCs and RHCs may serve as the distant site provider and telehealth services rendered by an FQHC and/or RHC to a Medicare beneficiary will be covered. The Secretary will issue separate payment rates for these services which will be comparable to current physician fee schedule rates. Note, however, that costs associated with telehealth services shall not be used to determine the amount of FQHC payments under their prospective payment systems or the amount payable to RHC under their all-inclusive rates.

Hospice Certification via Telehealth

Normally, Medicare beneficiaries must be certified to receive Medicare covered hospice benefits via an in-person face-to-face encounter. However, during the emergency period, a hospice physician or nurse practitioner may conduct such required face-to-face encounter via telehealth.

Home Dialysis via Telehealth

Pre-COVID-19, Medicare beneficiaries could receive the required monthly End Stage Renal Disease (ESRD) related clinical assessments via telehealth but only if, during the initial three month period of the beneficiary’s home dialysis services the beneficiary received a monthly face-to-face clinical assessment without the use of telehealth (i.e., an in-person clinical assessment) and thereafter once every three months. The CARES Act now allows the Secretary to waive these in-person requirements, so that during the COVID-19 emergency, Medicare beneficiaries may receive additional clinical assessments via telehealth.

Home Health Telehealth Reimbursement

Currently, the costs of remote patient monitoring (RPM) in the home health setting are allowable as administrative costs only. Visits to the home for the purpose of training a patient on use of the RPM technology is not a billable service. Note, this is different in other provider settings, such as physician practices/clinics, which can bill separate CPT codes specifically attributable to patient education and set up of the RPM equipment (i.e., CPT Code 99453). Under the CARES Act, the Secretary is required to consider ways to encourage the use of tele-communications systems, including for RPM. Thus, in addition to new waivers and expansions of telehealth for home health agencies already issued under the CARES Act on March 30 2020, it is possible that the Secretary will further expand access to telehealth for home health agencies, including through further expansion of the availability of RPM.

Use of Telehealth in Veteran Programs

A veteran’s enrollment or re-enrollment in a Veteran Directed Care Program typically requires an in-person visit with the applicable area agency. The CARES Act allows this in-person visit to be conducted via telehealth. In addition, the CARES Act directs the Secretary of Veterans Affairs is to ensure telehealth capabilities are available during the COVID-19 emergency for use by case managers working with homeless veterans participating in the Department of Housing and Urban Development Department of Veterans Affairs Supportive Housing program (HUD-VASH).

Telehealth Paid Outside of High Deductible

High deductible commercial health plans with health savings accounts (HSAs) may cover telehealth services and other remote care services prior to patients reaching their deductible without risking the tax advantages of an HSA.

Increased Funding for Telehealth

The CARES Act provides for increased funding to address a broad spectrum of COVID-19 concerns which often specifically call out the expanded use of telehealth and remote care technologies, which include among others, the following funding sources:

$27 billion for the U.S. Department of Health and Human Services’ (HHS) Public Health and Social Services Emergency Fund for COVID-19 activities, including telehealth access and infrastructure.

Over $1 billion provided to the Indian Health Services for COVID-19 measures including telehealth and other information technology upgrades.

$200 million for salaries and expenses to the Federal Communications Commission to support their efforts in responding to the COVID-19 emergency including providing telehealth services during the emergency period.

On March 30, 2020, CMS published an interim final rule implementing many portions of the CARES Act, a broad array of blanket 1135 waivers including those related to Stark self-referral provisions, and issues raised by the CARES Act, as well as provider specific guidance on additional waivers made available by the Secretary and CMS. CMS also recently indicated that additional waivers and/or rulemaking will be forthcoming to further implement the CARES Act and many of its provisions referenced here that are expected to further relax requirements related to telehealth and make it more broadly available during the current COVID-19 pandemic.

For more information, please contact your Foley relationship partner or the Foley colleagues listed below. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the websites of the CDC and the World Health Organization.

Foley has created a multi-disciplinary and multi-jurisdictional team to respond to COVID 19, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.